United States: What To Do About CDA Section 230 And ISP Immunity?

Section 230 of the Communications Decency Act (CDA) became law long ago when it comes to internet time, way back in the 1990s. The main thrust of the CDA was an effort by Congress to regulate indecent content posted online. Section 230 was included within the CDA to provide general immunity to Internet service providers with respect to third-party content posted on their sites. While the indecency regulatory aspect of the CDA was struck down by the United States Supreme Court as violating the First Amendment, Section 230 survives to this day and has been the critical legal backbone that has allowed a good part of the Internet to flourish, especially social media.

The Internet Back in the Days of Yore

When Section 230 became law, the public internet was in its infancy. Before that the internet was confined to the military and some academic institutions. Congress and politicians believed that an expanding internet would be beneficial to the economy and society at large (heralding the coming “Information Super Highway”). There was concern that if internet service providers were to be deemed responsible for content posted on their sites, they would be so burdened and bogged down in terms of grappling with calling balls and strikes on appropriate content to keep and remove that they would not be economically viable.

Since the 1990s, Section 230 has had a tremendous beneficial impact for internet service providers, and we have seen the rise of social media giants like Facebook, Amazon, Twitter, Snapchat, Wikipedia, and Yelp, among others.

But as time has gone on, there have been some criticisms of Section 230 from various quarters.

For example, there has been sharp criticism that during the 2016 Presidential campaign false information was posted on Facebook and elsewhere on behalf of Russian interests that were adverse to Hillary Clinton and favorable to Donald Trump in an effort to help Trump gain the Presidency.

On the flip side, some Republicans have been upset that certain conservatives have been censured from posting on social media sites, thus arguably depriving a diversity of views to be expressed online.

Others have been concerned that Section 230 is too broad, and as a consequence hate speech, online bullying, and harassment, sex trafficking and revenge porn have been permitted.

Just recently, the United States Court of Appeals for the Second Circuit held that Facebook is not liable for certain violent acts that were planned and supported by a militant Islamic group through certain Facebook accounts.

So, What Now?

Certain members of Congress with different agendas and from both sides of the aisle want to take action with respect to Section 230, according to the New York Times.

Even Ron Wyden, now a Democrat Senator from Oregon and an original supporter of Section 230, has stated that tech companies have not done enough to prevent “slime” on their sites. Democrat House Speaker Nancy Pelosi has stated that Section 230 has been a “gift” to internet companies “that could be removed.”

Republican Senator Ted Cruz of Texas has referred to Section 230 as a “subsidy, a perk” for tech companies that may need to be reevaluated. And Republican Senator Josh Hawley of Missouri introduced a bill two months ago that would strike down immunity for Internet companies unless they were subject to an external audit demonstrating that their content moderation practices were neutral as a political matter.

It will be interesting to see where this potential momentum goes. Indeed, with tech companies coming under attack from some of the 2020 Presidential candidates, Section 230 could become a political football on the campaign trail.

This is not an easy issue. There certainly is value in not having Internet companies overly burdened by online content posted on their sites. Also, it would be very difficult for Internet service providers to be in a constant process of calling the balls and strikes when it comes to the many millions of daily posts. And, do we want these companies to be the deciders of what is appropriate speech or not?

On the other hand, social media and other sites certainly provide an easy forum for content that is very negative and harmful to society on a national and international basis, and we need to figure out how to handle such content.

Section 230 and its historical, present and future ramifications likely will be in the limelight coming up.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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